STEPS TO AN EFFECTIVE SETTLEMENT
AT THE TABLE
In my last article in the Fall 1997 issue of this newsletter, I discussed
steps the court and counsel should take to prepare for a settlement conference. In this
article, I describe actions the court and counsel should take at the settlement conference
to enhance the likelihood that a settlement is achieved.
II. STEPS THE COURT CAN TAKE.
There are at least seven steps that a judge can take to make the settlement conference
- First, as I described in my last article, the court should use a written standing order
which requires the parties to do their homework before the conference begins. Requiring
the parties to exchange written settlement demands and offers prior to the conference and
requiring the attendance of clients with full authority will go a long way towards
insuring that meaningful discussions take place.
- Second, the court must set aside sufficient time to enable the settlement process to
operate. I conduct my settlement conferences in a mediation format, and I have found that
within one to two hours I can generally settle a case or determine that settlement is not
currently feasible. In a mediation format, you must allow sufficient time for the court to
give an opening statement to explain the process, for the parties to make their opening
statements, for discussion between all parties, for separate caucuses with the court, and
for a final session to confirm the settlement terms. It takes time for parties and their
counsel to digest the information they receive and to re-evaluate the options they face.
Setting aside sufficient time will insure that the parties and counsel have an ample
opportunity to settle the case. Resolution of disputes which have gone on for months and
years require the concentrated attention of the court and the parties. As a result, I
generally schedule one and a half hours for each settlement conference.
- Third, the court should provide a clear opening statement which explains the process and
the ground rules. The court should explain whether the process will be 1) facilitative,
in which the court will aid the parties in communicating with each other, but will not
make a recommendation or 2) evaluative, in which the court will make a settlement
recommendation. I generally explain to the parties that today they control their own
destinies regarding settlement and commit them to the proposition that they have a serious
desire to settle the case. I encourage the parties to be open and frank in their
discussions by explaining that the proceedings are confidential and statements made will
be inadmissible at trial. I tell them that counsel and clients will each be given an
opportunity to express their views. I encourage the parties to address their remarks to
each other, not to the court, and I insist that they not interrupt each other. I explain
that I will conduct separate caucuses and will engage in shuttle diplomacy to see if a
resolution can be achieved. I invite their questions regarding procedure. I want to be
sure that neither counsel nor the parties are surprised by the process.
- Fourth, the court must maintain its impartiality and should not coerce settlements. The
decision as to whether to settle belongs to the parties, with input from counsel. The
court must maintain its neutrality throughout the process. I ask open-ended questions
designed to stimulate discussion. I therefore use a facilitative style, and I only become
evaluative if both sides request my input after an impasse is reached. In this way, the
court does not become a hindrance to the settlement process by providing an early
evaluation, which places one of the parties in a defensive posture. In the separate
caucuses I ask the parties to discuss the view expressed by the other side and make
certain the party understands the risks of further litigation. Even if the case is not
settled, I want to be sure the parties are not later surprised by future steps in the
- Fifth, the court should allow the parties to do the talking. I have found the most
effective settlement conferences are those in which I talk the least. If the parties are
speaking to one another, analyzing the various issues and discussing possible resolutions,
they can often reach resolution without much input from me.
- Sixth, in the event an agreement is reached, I make sure all settlement terms are
reviewed and confirmed with counsel and the parties in a joint session at the conclusion
of the conference. I ask one of the attorneys to prepare and deliver to all parties a
written confirmation of the settlement terms within one business day. I give the other
side one business day thereafter to either confirm the terms or point out discrepancies. I
request the parties to copy me in on these two letters. On occasion, I will place the
settlement terms on the record. I do this when a party requests that it be done or where I
feel that it will be helpful in assuring the existence of the agreement.
- Finally, in those cases in which settlement is not achieved, I thank the parties for
their willingness to participate, and I reassure them that they will receive a fair trial.
A jury trial is a constitutionally protected right. I make clear that trial remains an
available and viable alternative.
III. STEPS COUNSEL CAN TAKE.
- There are at least six steps counsel can take to assist in securing a successful
- First, counsel should be sure the client understands the process and has agreed upon a
strategy. This should include a clear understanding of the objectives to be achieved, the
negotiating strategy to be employed and the division of responsibilities between lawyer
and client. Frequently lawyer and client appear without having previously discussed
settlement strategy. This is a big mistake and can lead to poor settlement results. Mediation
Advocacy by John W. Cooley is a helpful book published by NITA which provides an
explanation of how counsel can improve their settlement preparation and skills.
- Second, counsel should be prepared to deliver an opening statement which is clear,
concise and persuasive regarding the strengths of her clients case. She should
attempt to make the other side understand the risks he faces if he proceeds. I view
settlement as a means of risk avoidance. I believe counsels role is to minimize her
clients risk while maximizing risk for the other side. A strong opening statement
may be the only time counsel has to speak directly to the other sides client and
make him aware of the risks associated with his position. Counsel should avoid personal
attacks and express a serious desire to negotiate an agreement satisfactory to all
parties. An attorney who demonstrates competence and professionalism enhances her
- Third, counsel should understand the judges style and whether the session is
facilitative or evaluative. If the settlement conference is facilitative then emphasis
must be placed on communicating with the other side. If the session is designed to be
evaluative, a more legally reasoned presentation directed towards the judge is in order.
- Fourth, counsel should understand that she may be negotiating through the judge and
develop an effective strategy to accomplish her clients objectives. I generally do
not ask the parties for a bottom line in the separate caucuses because as long as the
client is present everything is negotiable. However, the parties must understand that the
process is a negotiation and the judge is a conduit for counter-offers and
counter-demands. Counsel should not be afraid to ask to meet separately with her client
outside the courts presence in formulating their next proposal.
- Fifth, counsel should consider whether there are any creative methods of settling the
dispute. One of the major advantages of settlement over trial is the ability to structure
a resolution which is not limited by the relief which can be granted at trial. Structured
settlements, continued business relationships and resolution of other conflicts between
the parties can all be rolled into a settlement.
- Sixth, counsel should insure that any agreements reached are confirmed at the conclusion
in a face to face meeting and followed up by a confirming letter or a statement on the
The court and counsel should devote the necessary energy and time to make settlement
conferences productive. An effective settlement conference not only provides clients and
counsel with an efficient means to solve problems but also creates a positive impression
of our judicial system. The success or failure of a settlement conference will depend upon
the preparation that takes place before the parties come together and the time and
attention counsel and the court pay to the process. Judges and lawyers acting as problem
solvers promotes respect and confidence in our profession.
A settlement conference permits a lawyer to use all of her skills as advocate,
counselor and negotiator for the benefit of her client. Lawyers should practice these
skills knowing that they will be called upon more frequently than trial skills.